US NSA can access data without court approval, leaker says

Analysts at the U.S. National Security Agency can gain access to the content of U.S. targets' phone calls and email messages without court orders, NSA leaker Edward Snowden said, contradicting denials from U.S. government sources.

U.S. surveillance agencies have weak policy protections in place to protect U.S. residents, but "policy is a one-way ratchet that only loosens," Snowden, the former NSA contractor, said in a chat on the Guardian's website Monday.

The technology filter designed to protect U.S. communications is "constantly out of date, is set at what is euphemistically referred to as the 'widest allowable aperture,' and can be stripped out at any time," Snowden wrote in the chat. "Even with the filter, US comms get ingested, and even more so as soon as they leave the border."

If an analyst at the NSA, CIA or other U.S. intelligence agency has access to the databases of collected communications records, "they can enter and get results for anything they want," Snowden added. "Phone number, email, user id, cell phone handset id, and so on - it's all the same. The restrictions against this are policy based, not technically based, and can change at any time."

Earlier this month, the Guardian and the Washington Post published information leaked from Snowden about the NSA and other U.S. surveillance. Snowden leaked a document showing a court order allowing the NSA and Federal Bureau of Investigation to collect phone records from Verizon customers, and he alleged that NSA analysts can gain access to phone calls and email messages without court approval.

Snowden's comments came after U.S. Representative Jerrold Nadler, a New York Democrat, suggested that lawmakers were told in a classified briefing last week that officials with the NSA and FBI believe they don't need court-ordered warrants to listen to phone calls and read emails.

Nadler, in a hearing last Thursday, asked FBI director Robert Mueller if the agencies need a warrant to listen to phone calls.

"You have to get a special, a particularized order from the FISA court directed at that particular phone and that particular individual," Mueller said.

NSA director Keith Alexander also said the agency needs warrants to access the contents of phone calls and email messages when questioned in another hearing last week.

The U.S. Office of the Director of National Intelligence Public also disputed Snowden's assertions of warrantless wiretapping and Nadler's understanding of the classified briefing to lawmakers.

"The statement that a single analyst can eavesdrop on domestic communications without proper legal authorization is incorrect and was not briefed to Congress," the ODNI said in a statement.

Nadler, in a statement released after the Thursday hearing, said the Obama administration had assured him that the "NSA cannot listen to the content of Americans' phone calls without a specific warrant."

U.S. officials are creating a false distinction between U.S. residents and other people, Snowden said in the chat. Saying U.S. residents enjoy more legal protections "is a distraction from the power and danger of this system," he wrote. "Suspicionless surveillance does not become okay simply because it's only victimizing 95% of the world instead of 100%. Our founders did not write that 'We hold these Truths to be self-evident, that all US Persons are created equal.'"

It's not difficult for the NSA to get a warrant for U.S. communications, Snowden added. "Even in the event of 'warranted' intercept, it's important to understand the intelligence community doesn't always deal with what you would consider a 'real' warrant like a Police department would have to, the 'warrant' is more of a templated form they fill out and send to a reliable judge with a rubber stamp," he wrote.

"Americans' communications are collected and viewed on a daily basis on the certification of an analyst rather than a warrant," he added. "They excuse this as 'incidental' collection, but at the end of the day, someone at NSA still has the content of your communications."

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

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